Regulatory and Permitting Information Desktop Toolkit

California Hydropower Permitting Process (CA)

The steps of the California hydropower permitting process are summarized in the chart below. Roll over each section for a summary of the regulations and permits it covers. Click a section to learn more about the required permits and regulations related to that topic.

Hydroelectric facilities in California include run-of-river, dam, and pumped storage facilities. Facilities smaller than 30 MW capacity are generally considered an eligible renewable energy resource and are referred to as “small hydropower.” California requires that small hydropower facilities be certified for the net megawatt-hours to count according to renewable energy portfolio standards. There are a few cases in which some hydropower facilities larger than 30 MW may also be eligible under specific criteria. California considers all other hydropower facilities large hydropower. California Energy Commission, Hydroelectric Power in California.

California has a hybrid surface water law system, containing elements of both riparian and prior appropriation water rights. In times of shortages, riparian rights are superior to appropriative rights, and later appropriators are subordinate to prior appropriators. The SWRCB regulates the appropriation of surface water and subterranean streams (23 CCR § 655), while CDFW protects stream and lakebeds pursuant to California Fish and Game Code Section 1602. The SWRCB also regulates groundwater pursuant to the Sustainable Management Act of 2014.

The California Environmental Quality Act (CEQA) governs the protection of environmental and natural resources. Unless exempted, CEQA applies to all “discretionary projects” proposed to be conducted or approved by a California public agency, including private projects requiring discretionary government approval. CPRC § 21080(a). For most hydropower projects, the application to the SWRCB for a Section 401 Water Quality Certification triggers CEQA review. The 2013 Memorandum of Understanding (MOU) established principles governing FERC and SWRCB coordination of hydropower pre-application activities. The MOU also established that SWRCB would be California’s lead agency to coordinate the environmental review for most hydropower projects. The CEQA environmental review process also requires consultation with California Native American tribes. Memorandum of Understanding 2013; 2015 Update for the CEQA Deskbook, at p. 6; Cal. Pub. Res. Code § 21080.3.1(d).
California requires energy transmission projects to obtain either a Certificate of Public Convenience and Necessity or a Permit to Construct Powerlines from the California Public Utilities Commission for hydropower transmission extension projects. General Order No. 131-D. Unless exempted, transmission projects designed to operate between a voltage of 50 kW and 200 kW require a Permit to Construct Powerlines. For transmission lines with a voltage of 200 kV or more, a Certificate of Public Convenience and Necessity is required. General Order No. 131-D.

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Developing Qualifying Conduit Hydropower Facilities in California

A qualifying conduit hydropower facility does not require a license or exemption from the Federal Energy Regulatory Commission (FERC). To qualify as a qualifying conduit hydropower facility, the project must meet the following provisions:

A conduit is any tunnel, canal, pipeline, aqueduct, flume, ditch, or similar manmade water conveyance that is operated for the distribution of water for agricultural, municipal, or industrial consumption, and is not primarily for the generation of electricity;

The facility generates electric power using only the hydroelectric potential of a non-federally owned conduit;

The facility has an installed capacity that does not exceed 5 MW; and

The facility was not licensed or exempted from licensing by FERC on or before August 9, 2013.

The developer may still need to obtain state, or local permits or authorizations in order to develop a qualifying conduit hydropower project in California. It is possible that the developer could meet federal regulatory requirements for a qualifying conduit hydropower project within as little as (60) sixty days.

To initiate the process for a qualifying conduit hydropower facility, the developer must first file a Notice of Intent to Construct a Qualifying Conduit Hydropower Facility with FERC. For more information on FERC’s process for authorizing a Qualifying Conduit Hydropower Facility, see:

A qualifying conduit hydropower facility is categorically exempt from preparing an environmental document under the federal National Environmental Policy Act and, therefore, is not subject to environmental review by FERC. Since qualifying conduit hydropower facilities are not subject to the FERC licensing or exemption process, qualifying projects are not subject to conditions and recommendations issued by the U.S. Fish and Wildlife Service or NOAA Fisheries under the Federal Power Act (FPA).

The developer may need to obtain a right-of-way from the appropriate state agency in order to develop or access the qualifying conduit hydropower facility or utility lines across state lands. The developer may also need to obtain a property right from an individual land owner if the project or associated utility lines are located on privately-owned land.

The developer may need to apply to the California State Water Resources Control Board for a non-consumptive water use right. A developer does not need to obtain a Section 401 Water Quality Certification for a qualifying conduit hydropower project.

The California Environmental Quality Act includes a “small hydroelectric categorical exemption” for projects at existing canals and pipelines that have generating capacities of 5 MW or less and do not affect instream flows or special-status species.

State Renewable Portfolio Standard Certification

A small hydropower project with a generating capacity of less than 40 MW may need a Renewable Portfolio Standard Certification from the California Energy Commission confirming that the hydropower project constitutes an eligible resource of renewable energy.

Federal Regulations and Permits for Hydropower Development

The federal government, through the Bureau of Reclamation and the U.S. Army Corps of Engineers (USACE), operates 133 hydroelectric power plants—representing 8% of the country’s hydroelectric facilities. The private sector, public utilities, and state or local government operate the other 92% of U.S. hydroelectric facilities.

The Federal Energy Regulatory Commission regulates most non-federal hydropower projects. FERC has the authority to issue licenses to construct, operate, and maintain non-federal hydropower projects, pursuant to the Federal Power Act (16 U.S.C. 791 et seq.). Although developers of hydropower facilities located on non-federally owned conduits with installed capacities up to 5 MW are not required to be licensed or exempted by FERC, they must obtain an authorization from FERC to construct a Qualifying Conduit Facility. Small conduit hydroelectric facilities up to 40 MW (16 USC § 823a(b)) and small hydroelectric projects of 10 MW or less (16 USC § 2705) are eligible for an exemption from the FERC licensing process.

All developers may apply for a FERC license using the default Integrated Licensing Process (ILP) and under appropriate circumstances may apply for and receive authorization from FERC to use the Traditional Licensing Process (TLP) or the Alternative Licensing Process (ALP). The three licensing processes differ mainly in how they coordinate the applicant’s (developer’s) pre-filing activities (i.e., before filing the license application), especially the study plan development, National Environmental Policy Act (NEPA) review, and other federal and state agency processes. The goal of each licensing process is to develop a complete record of information to support FERC’s licensing decision, which must take into account protection, mitigation, and enhancement of cultural, fish, and wildlife resources.

The Federal Power Act (FPA) specifies extensive federal and state agency participation in the licensing process. When making a licensing decision, FERC considers the outcome of the consultation process mandated by Section 7 of the Endangered Species Act and project reviews required under Section 106 of the National Historic Preservation Act and the National Environmental Policy Act. The FPA requires license applications to contain a 401 Water Quality Certification. 18 CFR §4.34(b)(5). FERC also considers a number of other environmental, cultural, biological, water quality, land, geological, recreational, and aesthetic impacts of a hydropower project in making a licensing decision.

Federal agencies or Indian tribes have mandatory or optional authority to issue conditions and/or recommendations for the FERC license regarding developmental and non-developmental values and comprehensive plans to protect and mitigate damages to fish and wildlife resources:

Section 4(e) of the FPA authorizes federal land managers to impose mandatory conditions on a FERC license for hydropower projects located on federal reservations.

Section 10(a) of the FPA requires FERC to consider a project’s consistency with the federal and state comprehensive plans for improving, developing, or conserving a waterway. Whereas 4(e) conditions are mandatory, license conditions submitted under 10(a) are not mandatory, but recommendations.

Sections 10(j) and 30(c) of the FPA require FERC to consult with state agencies, the U.S. Fish and Wildlife Service, and the National Oceanic Atmospheric Administration (NOAA Fisheries) who are responsible for the oversight and protection of fish, wildlife, and botanical resources. Based upon their review of the hydropower project and analysis of any study results, the agencies develop Section 10(j) recommendations for FERC-licensed projects. 16 USC 803(j). The FPA also authorizes the state and federal fish and wildlife agencies to issue mandatory terms and conditions for hydropower projects that are exempt from FERC licensing under Section 30(c). 16 USC 823a(c).